Standing Committee A

[Mr. Alan Hurst in the Chair]

Mental Capacity Bill

Clause 31 - Requirements for approval

Question proposed, That the clause stand part of the Bill.

Kevin Barron: There is uncertainty about what research will not take place if the Bill as it stands becomes law. The hon. Member for Sutton and Cheam (Mr. Burstow), who is not in Committee at present, referred last week to a briefing from the Medical Research Council and the Wellcome Trust, which were concerned that the research provision would inadvertently restrict certain categories of research that are of importance to adults who lack the capacity to consent. The briefing gives an example, saying that the provisions
''may restrict certain types of research on the side-effects of medicines used to treat people with mental disorders. This is illustrated by the following example. The drug clozapine is an important anti-psychotic drug the use of which has been restricted because it adversely affects the production of white blood cells. This side effect is not a 'condition' which is 'attributable' to the 'impairment of, or disturbance in the functioning of, the mind or brain'.''
 Those three points are related directly to subsection (2)(b). The briefing continues: 
 ''Rather, it is a 'condition' which is probably attributable to an inappropriate immune response triggered by the drug.'' 
Their concern is that 
 ''If the term 'connected with' is interpreted narrowly, research on the side-effects of this drug would not be permitted under the Bill. This could have serious implications for patients who suffer from schizophrenia or other mental disorders who stand to benefit from this type of research.'' 
The hon. Member for Sutton and Cheam spoke about the use in subsection (5)(a) of the word ''risk'', and the phrase ''in a significant way'' used in subsection (5)(b)(i). He said that the Medical Research Council was concerned about that. The example that I have cited clearly outlines the council's fears that a strict interpretation of the term ''connected with'' could narrow the scope for research. 
 I have been contacted by the British Medical Association, which has been negotiating with the Department of Health on the drafting of the Bill. The BMA is worried about non-therapeutic procedures, saying in its briefing note: 
 ''The provision to include non-therapeutic procedures that will benefit other third parties was originally included in the Law Commission 1995 report into Mental Incapacity . . . It mentioned that any order made by the Secretary of State must stipulate 
whether the procedure requires the prior approval of the court; or alternatively a certificate from an independent medical practitioner. 
 The Mental Capacity Bill does not tackle the question of minimally invasive interventions that are not directly in the best interests of the incapacitated person, but are not harmful and provide a significant benefit for third parties. There are two particular instances in which this would occur.'' 
I shall read out the two examples. I do not expect the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton), to give detailed responses to them now, but if she could do so in future it might benefit members of the Committee and medical professionals who work in such areas. 
 The BMA first has in mind 
''testing for blood borne diseases following a needlestick injury to a health professional where there are good reasons to think that the patient may have a condition, such as HIV, for which prophylactic treatment is available. As the Bill is currently drafted, it would be illegal to take a blood sample for testing. In circumstances where an individual is unconscious and unlikely to regain consciousness in the short term, a doctor who has received a needlestick injury cannot make an informed decision about ongoing . . . treatment if a test cannot be undertaken to determine the patient's infection status.'' 
In its guidance on serious communicable diseases, the General Medical Council, of which I am a lay member, makes it clear that 
''taking a blood sample for testing in such circumstances may leave the doctor open to criminal charges and that testing an existing sample, without consent, may also be challenged in the courts or before the GMC.'' 
The doctor might end up being subjected to the fitness to practice procedures if he did that. The BMA 
''would like the Bill to address this circumstance to allow doctors to take steps to protect their own health and the health of other health professionals where those incidents occur.'' 
Secondly, the BMA is 
''very pleased to note that provision is to be made in the Human Tissue Bill for Regulations to allow genetic testing of a sample from incapacitated adults for limited purposes other than their own medical benefit. There are circumstances where information obtained from DNA analysis will be of huge benefit to other family members and we hope that this will be covered by Regulations. As the Bill stands, however, there is no provision for samples to be taken for that purpose. It is not clear that taking blood for genetic testing for the benefit of a relative would satisfy the 'best interests' tests as a matter of law. In discussing this issue the Human Genetics Commission said ' . . . the position of the adult without capacity remains unsatisfactory. The lack of any specific legal authority means that, whether or not such an intervention is lawful remains open to doubt.' The BMA would like to see this issue clarified in the Mental Capacity Bill.'' 
I do not think that we will clarify the issue this morning, but I say to my hon. Friend that people working in the profession need to have those two issues clarified, particularly the consequences of a needlestick injury to a health professional. Although that may be outwith the aims of the clause, we ought to clarify the issue at some point both for professionals and for patients—obviously, patients need to know what might happen to them in certain circumstances. 
 I do not want to trawl over the issue any more. I recognise that it is difficult to respond to the picking out here and there of words such as ''risk''. The Bill is drafted by parliamentary lawyers, who have made their best guess as to how we should proceed, but 
 questions have been raised by outside organisations and professions and we ought to try to answer them as best we can during the passage of the Bill.

Tim Boswell: I am grateful to the right hon. Member for Rother Valley (Mr. Barron) for raising these issues, which he does both of his own cognisance and on behalf of the GMC. The issues he raises go to the heart of concerns expressed in earlier debates, which I do not need to rehearse.
 To make an obvious but important statement, the Bill sets out provisions for research and is designed to provide some boundaries beyond which that research should not take place. In fairness, and remembering earlier discussions about research ethics committees and so on, and the oaths taken and personal moral judgments made by members of the medical profession, I ought to say that there are, of course, limits on the process. We have discussed the inappropriateness of, among other things, carrying out research that has no connection with the person involved or their condition but has to do with something completely other, or research that is likely to cause them serious pain or distress. Both are ruled out, and so they should be—that is not the issue. 
 The right hon. Gentleman is right to raise the issues and say, with great respect to the Minister, that we probably will not resolve them today. Further reflections and discussions, and perhaps deliberations in another place, will be required before they are hammered out. He is right to raise them in relation to acts that are connected with the condition but not actually the condition itself—I have some sympathy with his points on that—and in relation to research that is not demonstrably for the benefit of the patient. I touched on that earlier. 
 Interestingly, the word ''benefit'', which is drawn from parallel Scottish legislation, as the right hon. Member for Coatbridge and Chryston (Mr. Clarke) reminds the Committee, is introduced at this point in the Bill but does not appear elsewhere. I said the other day—it remains my view—that there is concern about the overall application of the best interests principle in clause 1 to this clause. One has to stretch the principle, which has to be very elastic, to encompass all situations now. We have to think long and hard about whether we need to set boundaries. 
 Subsection (4)(a) talks about 
''the potential to benefit P without imposing . . . a burden that is disproportionate''. 
That is a reasonable test, which is why I did not seek to exclude it through my amendment. However, it is made clear in subsection (5) that that test in subsection (4)(b) would be different. Research that passed that test would not be a subset of something that might benefit P—in fact, it is implied that it would not benefit P. In effect, subsection (5) states that if such a test will not benefit P, we have to make sure that it will not damage P. That brings me on to what I have called neutral acts—acts that do not help the person who has lost mental capacity, but are somehow related to their condition and might benefit a class of people in the 
 future. That employs a wide interpretation of the best interests clause. We need to watch carefully and establish whether we need to tie the matter down further, either with language, or, as the right hon. Gentleman suggested, with an independent umpire who could rule on behalf of the court if necessary. That would be a reasonable test. 
 The right hon. Gentleman also raised the issue of blood tests. I am not clear about whether a blood sample or part of one taken for one purpose in connection with the treatment of the person, P, could be diverted to another purpose. Will the Minister clarify that?

Angela Browning: My hon. Friend might be aware that a year or so ago, with the assistance of the Home Office, I helped to introduce a new rule on the taking of blood samples when, for example, somebody enters casualty unconscious but might be the perpetrator of a fatal road accident as a result of drink-driving. I had many discussions with the BMA ethics committee in the run-up, and we eventually got a solution. It seemed unfair that somebody could go into the mortuary of a hospital having been the victim of a drink-driver, whereas the drink-driver could go into casualty with all the protections that have been mentioned.

Tim Boswell: I am grateful to my hon. Friend for reminding the Committee of that. Such areas are very difficult to negotiate. We should not demonise the medical profession, but nor should we give it carte blanche. The Committee is picking its way through. I hope that the Minister will reflect on what has been said and on what others may wish to add this morning. We can then hammer out something with which we can all be happy.

Rosie Winterton: I begin by welcoming you to the Committee, Mr. Hurst. I am looking forward to serving under your chairmanship.
 The purpose of clause 31 is to define what kind of research involving people who lack capacity to consent can be approved. Subsection (2) sets out the first requirement: that 
''research must be connected with a condition which— 
 (a) affects P, and 
 (b) is attributable to the impairment of, or disturbance in the . . . mind''. 
My right hon. Friend the Member for Rother Valley made an important point about the grey area surrounding the word ''attributable'' in the clause. He pointed out that we might have not covered absolutely what research might be done into causes. We have noticed that that needs clarification and I assure him that I will consider whether we need to clarify that issue further. 
 The hon. Member for Daventry (Mr. Boswell) made a point about best interests and the scope for research. The best interests test will apply to acts done or decisions made for or on behalf of P, and the application of that to research is difficult. I 
 acknowledge that to define what might be in general best interests is more difficult—for example, in research projects it will not always be possible to prove that something will be of direct benefit to P, because then it would be a treatment rather than research. 
 The hon. Gentleman asked about whether blood taken for one purpose could be diverted to another. That touches on some of the points that we have made about whether research would be unduly invasive. Clearly, if blood samples are being taken for one purpose, such as diabetes testing, a research ethics committee might give the go-ahead for those samples to be used, or for a little extra blood to be taken, for a research purpose. However, if conducting the research meant that hourly blood samples had to be taken, a research ethics committee might feel that that was unduly invasive. The Human Tissue Bill, particularly schedule 2, covers some of the issues about samples taken for one purpose being used for another where there are public health issues. 
 My right hon. Friend was right to raise the point about needlestick injury, and it is important that we look at that. Some of that is covered by clauses 4, 5 and 6, and some of it may cross over with the Human Tissue Bill. 
 Question put and agreed to. 
 Clause 31 ordered to stand part of the Bill.

Clause 32 - Consulting carers etc

Tim Boswell: I beg to move amendment No. 45, in clause 32, page 18, line 19, leave out 'or is P's deputy'.

Alan Hurst: With this it will be convenient to consider the following amendments: No. 181, in clause 32, page 18, line 20, at end insert
'but a deputy shall not be able to consent to research under 31(4) unless the court has conferred on the deputy express authority to that effect.'. 
No. 182, in clause 32, page 18, line 21, leave out subsection (7).'.

Tim Boswell: In a sense, these discussions all hang together. Clauses 32 and 33 relate to safeguards for P if P is participating in a research project. By definition, P lacks capacity if those clauses apply. Amendment No. 45 touches simply—or perhaps not so simply—on the independence of persons who may be consulted about that.
 There is a welcome provision in clause 32 for carers and other related persons to be consulted. Subsection (6) refers to 
''the donee of a lasting power of attorney'', 
who might well be a relative of the person who executed that LPA, so it would be ridiculous to rule them out of being considered as the relevant carer. I ask the Committee to pause and think about the deputy, however, because that person is appointed by the court. He or she may well be a professional person—one who is involved, for example, in social services—who is appointed because there is no attorney and P lacks capacity. People may feel that 
 there is a potential clash of interest for the deputy, who may have other commitments and be guided by his own professional codes or his employers' instructions, and thus may not be able to give an unfettered view. More particularly, as the Committee may realise, even if that person can act in good faith on behalf of the person for whom he is the deputy, other people from outside might question whether he is truly independent. There are a number of solutions to that problem. 
 I invite the Minister to take this matter away, because I do not want to re-open the debate on clause 31. However, in particularly difficult cases, it may be sensible for the court or a deputy appointed for the specific consideration of the research project to be right outside the box. In such circumstances I would be relaxed about dealing with somebody who was already a court deputy. I am not clear whether, under the proposed legislation, it would be possible to have two people with that formal function in different respects, or whether the court could appoint an independent person who is not called a deputy for that purpose. 
 I do not want to speak about this at length again, but during earlier discussions I suggested a ''mixed economy'', with as many people involved as might reasonably be possible. It would be all right to use a court deputy, provided that there was another person outside the box of whom it could not be said that they were already committed, or compromised, in taking the decision or giving the advice. I realise that these are difficult matters, but there are a number of ways of solving the problems and the Minister needs to reflect about things, not least because of her concerns about the sensitivity of research going on at the very edge of what might be deemed to be in the person's best interests. That is an underlying principle of the Bill. She needs to reflect on an overt clash of interests that might arise from the drafting of the Bill, or on any potential charges of misconduct that might be levelled at a deputy, even when they were giving advice with the best of motives and in good faith. 
 It is important to state that we are talking about a person on whom research may be performed, but who lacks capacity. It is extremely important that nobody should be seen to be manipulating the situation to his or her own advantage and not in the best interests of the person involved. We have to maintain that underlying principle throughout these clauses.

Tom Clarke: I rise to speak in favour of amendments Nos. 181 and 182, which are probing amendments tabled to enable my hon. Friend the Minister of State to set out in more detail the Government's thinking on the appropriate safeguards to protect incapacitated people from exploitation.
 I am concerned, in amendment No. 181, about a court-appointed deputy deciding whether an incapacitated person should take part in research that does not directly benefit P unless the court has conferred on the deputy express authority to that effect. I would welcome comment from my hon. Friend the Minister as to when she thinks it might be 
 appropriate for a deputy to make a decision about research on P's behalf, and whether she thinks that such an occurrence might be common. 
 Amendment No. 182 deals with my concern about clause 32(7). It is worth noting that the title of that clause is ''Consulting carers etc'', yet subsection (7) gives researchers the right to ignore what carers say are P's wishes and feelings—that P does not want to take part in research—and go to the Court of Protection to obtain permission anyway. That requires an explanation. 
 Given the absolute need to err firmly on the side of caution, if the researcher knows that P is unlikely to want to take part in research, my gut feeling is that that should be the end of it. I would welcome hearing what my hon. Friend thinks about this, and in particular whether she thinks it likely that a researcher would go to the Court of Protection to get permission to undertake research on P if that researcher knew, as far as possible, that neither P nor P's family would like to take part in that research. That is an extremely important question. 
 I would like my hon. Friend to give us the benefit of her thinking on these probing amendments.

Angela Browning: I support the amendments to which the right hon. Gentleman has spoken. I have huge reservations about this section of the Bill. I am not totally opposed to people who lack capacity participating in research that benefits a third party, but the question of giving permission, and who gives it and in what circumstances, must be absolutely watertight. I share his concern.
 My concern is that all too often the medical profession is terribly gung-ho about research and that sometimes it is difficult for people to feel that they are getting a genuinely independent second opinion. Particularly for the person giving permission, the medical detail and the science behind it might not be fully understood. As a rule, we still tend to take it on trust that what is being suggested is right. That is especially the case when somebody is an in-patient; I am thinking in particular of when P is an in-patient. There are feisty old things like me who always challenge and question, but probably not enough of us do so. 
 In the medical profession, second opinions have not always necessarily been independent. They have often been based on the old-boy network; people have relied on someone they know to give them an endorsement. Therefore, the Bill should contain checks and balances so that the person acting on P's behalf—whatever the relationship—has the opportunity to ensure that the advice is truly independent. 
 I support the two amendments tabled by the right hon. Member for Coatbridge and Chryston. They are intended to strengthen this part of the Bill, about which I have grave concerns. I have a horrible nagging feeling in the back of my mind that if we do not get this absolutely right, for all the reasons that have been given we will open the door to situations that we will find unacceptable. We are dealing with somebody who 
 has lost capacity and with regard to whom any treatment, therapy or invasion will be for somebody else's benefit. That is not a bad thing in principle if we can place our hands on our hearts and honestly say, ''If that person had capacity, they would say yes,'' or, in this case, the person acting on their behalf would say yes. 
 I want to raise an issue about the next of kin. Often, people lose capacity during their stay in hospital; they may be compos mentis when they go in and then lose capacity while they are an in-patient. When they are admitted, they are asked not about all the detail that we have before us now but, ''Who is your next of kin?'' That is what they write down on a hospital admission form. However, the next of kin may not be the person who will ultimately be consulted under the terms of this legislation. Therefore, it is quite possible that the next of kin may have a view—and, I assume, may still have a legal view—on P, but that they may not be very much involved in this type of decision-making. 
 The next of kin may be a frail spouse who is unable to visit regularly but still has capacity. They may be in a residential home. That is particularly the case with regard to elderly couples: when one goes into hospital, the other might be in residential care but cannot visit. Legally, they may be the person who should be consulted, but they will not be around. 
 10 am 
 I wonder how the hospital would get right the balance between the next of kin whose name had been written on the admission form and some other person who would then appear. If the other person had to appear on P's behalf, it seems only right and proper that they should get the right authority to make decisions, give P's view or sanction things to happen on P's behalf. The issue worries me considerably.

Rosie Winterton: As Committee members have said, clause 32 deals with the arrangements for seeking agreement for individuals to be part of the research study, once that has been approved. It sets out the importance of consulting those who are best placed to comment on the likely wishes and views of the person who lacks capacity before that person can take part in that research.
 The clause also sets out an important safeguard: if the carer or nominated individual consulted advises against involving the person in the research, that person cannot be a participant—it will be as simple as that. The code of practice sets out in more detail the requirements for consulting on an individual's involvement in research. 
 The amendments focus on providing safeguards for people who lack capacity and on ensuring that they are protected against inappropriate involvement in research. I fully agree with the intention underlying the amendments and with the points that right hon. and hon. Members have made. We want to get the safeguards right. 
 Amendments Nos. 45 and 181 focus on ensuring that a deputy could not be consulted on P's involvement in research. Amendment No. 182 would remove researchers' right to contest in court a decision on non-participation. I have given serious thought to 
 those issues and say up front that I want to consider seriously the points made in Committee. I have reservations, which I will go through, about accepting the amendments as drafted, but I certainly agree with their spirit. 
 On amendments Nos. 45 and 181, I acknowledge the concern of the hon. Member for Daventry and of my right hon. Friend the Member for Coatbridge and Chryston to protect a person who lacks capacity from a decision by a court-appointed deputy whom they had not chosen to represent them. I also take on board the points made by the hon. Member for Tiverton and Honiton (Mrs. Browning). 
 Clause 32 makes it clear that a researcher would have to take steps to identify someone, other than a person acting in a professional capacity, who cared for the incapacitated person and would be willing to be consulted on the incapacitated person's participation in an approved research project. 
 It is clear that the role of the consultee would be to consider what was involved in the project and what the incapacitated person would feel about being involved. To do that, the person consulted would have to be made aware of the aims of the research, the procedures involved and the risks or inconvenience that might ensue. They would then have to give advice on whether the person without capacity should take part and on their wishes and feelings about the project. Importantly, the consultee would need to ensure that any previous statements that indicated a refusal to be involved in research, including any advance decisions, were respected.

Tim Boswell: The Minister is, very helpfully, setting out some conditions. Does she agree that, as the normal practice of a research ethics committee and under the protocols that it establishes for research, those proposing the research should set the conditions out in writing, and in a clear format, for the consideration of the independent person? That is unless there is some urgency condition that is separately covered. Some of us are concerned that words may be whispered in corridors rather hastily and that people may feel that they have not had time to consider the decision. If a case involves an independent person, it is important that an audit trail for that decision be established.

Rosie Winterton: What is important is that research ethics committees stick to the principles laid out in the Bill and draw attention to them when setting out how research is to be undertaken. The hon. Gentleman will see that clause 31(6) says:
 ''There must be reasonable arrangements in place for ensuring that the requirements of sections 32 and 33 will be met.''
 As I have said, in such circumstances, the consultee will certainly need to ensure that previous statements are respected, including any advance decisions to refuse to be involved in research. 
 In relation to research, it is important that the consultee knows the person well as a carer or is otherwise interested in their welfare. For that reason, the Bill states that when someone is appointed a deputy or has a lasting power of attorney, it does not 
 automatically follow that they cannot be consulted on research if they otherwise meet the requirements for a consultee. As we have said, deputies and attorneys may often be a parent or spouse, or may know the person better than anyone else. 
 My worry about accepting the amendment as drafted is that it could have the perverse effect of denying a close relative or spouse any direct say in P's involvement in the research. That in turn might mean that the researcher had no one else to turn to. He would then have to avail himself of another person, appointed under the guidance in subsection (3). That person would need to have regard to the same factors as any other consultee, but would not necessarily be well placed to reflect P's feelings and wishes other than by consulting the close person who was a deputy—often a paid carer. 
 However, I am sympathetic to the point made about the possibility of a deputy or a person with a lasting power of attorney who had no real personal interest in P's welfare or care being asked about research. Subsection (2) states that the person consulted must not be acting 
''in a professional capacity or for remuneration''. 
That would rule out, for example, a solicitor who was handling financial matters for an unbefriended person without capacity. 
 It is important to consider the issue in the context of the clause, and particularly in relation to the arrangements under subsection (3), so that we can ensure that we have proper safeguards for people who may not have personal knowledge of the person. I ask the hon. Member for Daventry and my right hon. Friend the Member for Coatbridge and Chryston not to press their amendments so that we can consider the matter further. 
 I understand the concern, expressed in amendment No. 182, to ensure that where a carer or independent person has said that someone should not take part in research that should be the end of it, with no further recourse to the court to overturn the decision. My right hon. Friend asked for some of the thinking behind the Bill. As I have said, I appreciate the concern that if the carer has been consulted and has said no, that should be the end of the matter. However, subsection (7) was included to provide a mechanism whereby disputes could properly be resolved. 
 If a researcher believed that the research had the potential to benefit the person lacking capacity and wanted to challenge the views of the carer or nominated person, it would be for the court to decide whether the research would be of benefit to P and not disproportionate to the risks. I would expect such an occurrence to be rare and would not wish the provision to override the prior views of the person without capacity as relayed by the carer or person interested in their welfare. To be absolutely clear, the provision should certainly not apply to any non-therapeutic research. However, I will consider carefully whether subsection (7) as drafted is the most appropriate way to involve the court in resolving disputes about beneficial research activity. 
 We are aware of previous High Court decisions that have authorised experimental treatments under principles of best interests. For example, a case of a young man who suffered from variant CJD went to the High Court. We want to consider how we get the balance between the two, with people saying, ''Well, this may be of benefit, even if somebody else objects.'' At the same time—as my right hon. Friend and others have pointed out—it is important that we respect the wishes of the person, if they have been conveyed very strongly. 
 In view of the fact that I want to consider all the amendments, I hope that the hon. Member for Daventry will withdraw his.

Tim Boswell: I thank the Minister for her response on a delicate issue. Nobody wishes to frustrate useful research, if it is appropriate, but it is also right that we look for safeguards. The Minister has approached the matter in the right way, both in her acceptance of that general principle and in her readiness to look again at the wording. It is sensible for us to follow her advice.

Tom Clarke: Likewise, I have listened carefully to my hon. Friend the Minister, who said on several occasions that she will consider our views seriously. I am sure she means what she said. I am happy to agree to her request, Mr. Hurst, particularly because I am looking forward to catching your eye on new clause 27.

Tim Boswell: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 32 ordered to stand part of the Bill.

Clause 33 - Additional safeguards

Tom Clarke: I beg to move amendment No. 183, in
clause 33, page 19, line 3, at end insert
'or wishes expressed by P in a LPA.'.
 The Minister might shorten our proceedings on the amendment by accepting it. However, if she does not, I am sure she will respond carefully to the points that I am about to make. The amendment would be an additional safeguard to the clause in that it recognises the role that an LPA could play alongside an advance decision by setting out P's wishes and feelings about taking part—or not taking part, which is just as important—in particular research. It would ensure that LPAs had parity with other forms of advance decision making about research. I look forward to hearing her response.

Paul Burstow: I support the amendment, which would achieve a helpful further development of the role of LPAs in research. LPAs could be used in such a way because it is up to individuals to decide what they want to stipulate in such procedure. Has the Minister been
 persuaded by the representations that all members of the Committee have received from Fiona Randall, a consultant at the Royal Bournemouth and Christchurch hospital? Her helpful letter was referred to in previous sittings. She has made some telling points, particularly on the need for such matters to be clearly documented and for advance statements to be clearly documented and signed. Will the Minister comment on that, especially the fact that such decisions need to be in a written form? The Bill clearly states that LPAs must be in a written form, but, according to representations that we have received, advance statements also need to be in a written form.

Rosie Winterton: Again, I sympathise with the concern of my right hon. Friend the Member for Coatbridge and Chryston to ensure that someone's wishes about participating in research that were set out when the person had capacity should be taken into account when that person lacks capacity and certainly before a researcher involved that person in some form of research project. However, I cannot be so accommodating with the amendment as I have been with other proposals. One of the problems with the amendment is that, in some senses, it is unnecessary because clauses 32(2) and (6) make it clear that a researcher must take reasonable steps to identify someone who, other than in a professional capacity or for remuneration, is engaged in caring for P and consult that person on P's participation.
 Clause 32(6) makes it clear that that person could be an attorney, which means it is already clear that, if P wished his attorney to be consulted on participation in research, that should happen. The amendment has mistaken the reason for an LPA. In making an LPA, a person is not necessarily setting out his wishes or feelings, but giving another person the authority to make specified decisions on his behalf and to give substitute consent. If someone wished to set out his feelings and wishes about research, an advance statement would be the appropriate place to do that.

Tim Boswell: If someone had appointed a person as his attorney, but at a time when he had capacity and that appointment was included in a deed that specified conditions for research, it would be an advance statement of his intentions. It would be unethical or improper for the attorney to go against those wishes, so the attorney could not make a decision to involve the person in a research project anyway.

Rosie Winterton: The Bill makes it clear that an advance decision to say that someone did not want to participate in research has to be respected. It allows for attorneys to be consulted as part of the process, but clearly to give an attorney powers in respect of research, without safeguards, might remove some safeguards from the incapacitated person's participation because the decision would be a substitute decision made as though by a person with capacity. We understand the concern to ensure that an attorney should be fully consulted when appropriate, which relates to our previous discussion. As I said, the
 Bill already requires that the attorney should be consulted—a fact that we shall reiterate in further guidance.
 As for the point made by the hon. Member for Sutton and Cheam about advance decisions under the Bill, a clause states that the wishes in advance decisions about research must be respected. We want to ensure that there is flexibility for an individual to be able to reflect on what P might have wanted in those circumstances. There is the ability to state wishes and feelings in advance decisions. We want to retain that flexibility, but also to be able to take full account of the wishes and feelings of the individual, although it will not necessarily always be through an LPA that those wishes and feelings are reflected. 
 I hope that my right hon. Friend the Member for Coatbridge and Chryston accepts our concern that we do not want to bypass some safeguards in the Bill by allowing substitute consent in respect of research. I ask him to withdraw the amendment.

Tom Clarke: I am particularly interested in my hon. Friend's definition of the role of attorneys with regard to this aspect of advance decisions and the Committee probably finds her explanation helpful. I realise that the mistake I made when speaking to the amendment was not to say that it was probing. Each time I probed, however, I got something, so I have received a helpful response. In that spirit, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 33 ordered to stand part of the Bill.

Clause 34 - Appointment of independent consultees

Paul Burstow: I beg to move amendment No. 170, in
clause 34, page 19, line 11, leave out subsection (1) and insert—
'34 Appointment of independent advocates
 (1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person (''P'') when another person (''D'') is considering doing an act, or making a decision to do an act.
 (2) The assistance available under the arrangements must include—
(a) assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him;
(b) assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider and are relevant to the decision or proposed action if he were able to do so;
(c) assistance to maintain the principles set out in section 1 of this Act.'.

Alan Hurst: With this it will be convenient to discuss the following: Amendment No. 171, in
clause 34, page 19, line 16, leave out 'of independent consultees' and insert 
 'or recognition of independent advocates for the purposes of this Act'. 
Amendment No. 172, in
clause 34, page 19, line 17, leave out from 'independent' to end of line 18 and insert 'advocates'. 
Amendment No. 173, in 
clause 34, page 19, line 20, leave out 'consultee' and insert 'advocate'. 
Amendment No. 174, in 
clause 34, page 19, line 22, leave out 'consultee' and insert 'advocate'. 
Amendment No. 175, in 
clause 34, page 19, line 25, leave out 'advice' and insert 'support'. 
Amendment No. 176, in 
clause 34, page 19, line 42, at end add— 
 '(9) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act. 
 (10) Nothing in this section obliges P to accept the assistance offered by an independent advocate.'. 
Government amendments Nos. 224, 227 and 233. 
 New clause 3—Advocacy service— 
 '(1) The appropriate authority must make arrangements to secure advocacy in decisions relating to— 
 (a) making and reviewing of care programmes 
 (b) decisions of residence. 
 (2) the appropriate authority must fully note decisions made in these matters and the reasoning behind them.'. 
New clause 4—Duty of care of a local authority— 
 'Where a local authority have reasonable cause to suspect that an adult who lacks capacity who lives, or is found, in their area is suffering, or likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the adult's welfare.'. 
New clause 27—Appointment of independent advocates— 
 '(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person ''P'' when another person ''D'' is considering doing an act, or making a decision to do an act. 
 (2) The assistance available under the arrangements must include— 
 (a) Assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him. 
 (b) Assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so. 
 (c) Assistance to maintain the principles set out in section 1 of this Act. 
 (3) The appropriate authority may make regulations— 
 (a) as to the appointment or recognition of independent advocates for the purposes of this Act. 
 (b) as to the functions of independent advocates in relation to sections New Clauses 2 and 3. 
 (c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed; 
 (d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations. 
 (4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision. 
 (5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
 (a) For the purpose of enabling him to carry out his functions, an independent advocate— 
 (i) may interview in private the person he has been asked to support and 
 (ii) may examine any record of a prescribed kind which the person holding the record considers may be relevant to the independent advocate's investigation. 
 (6) In this section and section 35, ''the appropriate authority'' means— 
 (a) in relation to the provision of the services of independent advocates in England, the Secretary of State, and 
 (b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.

Paul Burstow: I shall take a leaf out of the book of the right hon. Member for Coatbridge and Chryston by saying immediately that the amendments are intended to probe the Government. I hope to test his theory and find out whether that evokes a more positive response, although perhaps the theory works for some and not for others. Nevertheless, that is the intention behind the amendments, although we also want to help to provide greater clarity on the purpose of, and intention behind, independent consultees, which is what this clause and the subsequent three or four clauses deal with. We also want greater clarity on the issue of advocacy, which is a cause of great concern for many organisations watching our deliberations and awaiting the Minister's response with interest.
 Advocacy is one of the matters that the Joint Committee, appointed last year to scrutinise the draft Bill, had occasion to look at in great detail. In almost every submission that we on the Joint Committee received—there were perhaps one or two exceptions—the view was that advocacy was one of the keys to realising the potential of what was then the draft Mental Incapacity Bill. Advocacy was a means of enabling people to have as much autonomy, and realise as much of their independence of action, as possible. Having independent advocacy as a right was to be a key part of that. The organisations that made those points to us included the Making Decisions Alliance, People First, the Association of Directors of Social Services, the Law Society and Citizens Advice. The Disability Rights Commission also made clear representations on the Bill, which I will refer to later. 
 In the Joint Committee's evidence sessions, it was clear just how fragmented, piecemeal and patchy advocacy services are. In parts of the country, there are advocacy services par excellence, which are beacons that provide a model that others could follow. In some areas, such services are frankly ropey, while in others there is no discernable advocacy service. The picture across the country is variable. To date, the Government's approach has been to respond to particular interventions and amendments tabled to legislation, often by Government Members. 
 The Government have extended rights of advocacy, but have done so in fairly narrow terms. For example, the last but one piece of NHS legislation provided for the independent complaints and advocacy service. Some would argue that that is a fairly narrow interpretation of what advocacy is all about, because the focus of that service is on facilitating use of the 
 complaints process and supporting people through it. My concern, and the reason for the amendments, is that to many people the provisions in the Bill are not even a form of advocacy. At very best, they are a narrow interpretation of what advocacy is about.

Tim Boswell: I know that the hon. Gentleman shares my interest in learning disabilities generally. After the publication of the White Paper and the Government's strategy on learning disabilities, ''Valuing People'', we made similar points about the need for advocacy. Does he agree that the subsequent experience has been less than satisfactory or encouraging, if we apply those points to the Bill?

Paul Burstow: That is a fair comment. The aspirations set out in the White Paper rightly secured cross-party support; the idea of advocacy networks is certainly supported. Undoubtedly, one of the Government's concerns about putting advocacy rights in any legislation is the cost. I want to address that point in a moment. As I understand it, the resourcing that went into the implementation of the policy intentions behind the White Paper ''Valuing People'' added up to about £8,000 per local authority. It is hard to see how a meaningful advocacy service could be put in place with such a budget.
 It is interesting that the Joint Committee was given quite a bit of evidence pointing towards the experience in Scotland, where there has been a move to develop local advocacy strategies, and where quite a bit of work has been driven, at least in part, by statutory requirements much more broadly drawn than those in English and Welsh legislation. 
 I will come back to the Scottish legislation, but it is worth drawing attention to the issue of resources, which was considered by the Joint Committee and leads to some questions that I would like to put to the Minister. The Joint Committee report said: 
 ''In answer to a question about the costs involved if a right to independent advocacy was included in the Bill, Health Minister Ms Rosie Winterton said ' . . . quite frankly, it would be extremely difficult to envisage that there would be the scale of resources available . . . To say that we could look at the whole range of people who would be covered by the Bill and imagine that in every case there may be an advocate would be unrealistic for us'''. 
The questions arising from that have been put by the Making Decisions Alliance to Ministers and officials for some time. Will the Minister tell us the estimated number of people who will qualify for an independent consultee now? Some estimates must have been made, as the figure of £6.5 million has been given as the cost. It would be useful to know what they are. 
 What would be the estimated cost of providing an independent consultee for each individual? What has been assumed to be the average cost of providing an independent consultee service? Given the regulation-making power to extend the independent consultee service, does the Minister have a view on whether the £6.5 million mentioned in the explanatory notes would be sufficient first and foremost to cover the proposal that it should deal with those who are ''unbefriended'', but also to allow for that to be extended? How much 
 money would be left to support other groups who would benefit from having an independent consultee? Some illumination of such issues, and an idea of how many others the Minister thinks might come under the remit of the amendments would be useful when we try to understand how the Government feel that the cost would be unsustainable to them and the taxpayer. 
 The recommendation of the Joint Committee was clear on the question of independent advocacy. It said: 
 ''We are convinced that independent advocacy services play a essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives; providing a focus on the views and wishes of an incapacitated person in the determination of their best interests; providing additional safeguards against abuse and exploitation; and assisting in the resolution of disputes.'' 
 The issue of disputes has not been adequately factored into the debate about cost. Unless we build low-level dispute resolution into the decision-making processes, the danger, in an increasingly litigious society, is that more cases than necessary would go to court. A more widely drawn advocacy service provided by statute as of right appears an expensive option. However, given what the Bill will, rightly, release and unleash, I suspect that such an option could mean that costs would be better controlled, and outcomes better from the point of view of the person about whom decisions are made.

Angela Browning: I fully support what the hon. Gentleman has said. More and more cases going to the courts would be a matter not only of cost, but of time. There will be a backlog; people about whom there are urgent and critical decisions to be made will be in a long queue waiting for their slot at the court. That happens now to a degree with tribunals, but this would be more severe than that.

Paul Burstow: The hon. Lady is right to pull me up on that. Cost is one factor, but there is another cost—the cost of delay and, in many such decisions, the stress and distress that that causes to the individual, and to other family members and concerned and interested parties.

Joan Humble: We are all agreeing about the need for advocacy and the help that that can give. If advocacy services intervene at an early stage they can prevent people from forming opposing camps. If a dispute is going before the courts, those camps become increasingly entrenched, and people become increasingly bitter; they hold to their positions without wanting to discuss them in any meaningful way, and the person at the centre is often bewildered by it all. Therefore, advocacy services are very important for early intervention and early dispute resolution.

Paul Burstow: The hon. Lady makes the point more eloquently than I could. I hope that the Minister will keep it in the forefront of her mind when she responds to this debate, and that she will pick up the spirit of the amendments if it is not possible to incorporate the literal letter of them into the Bill.
 In their response to the Joint Committee recommendation that I have just read out, the Government said: 
 ''We are working with stakeholders to explore more fully the range of advocacy available, how it is most effectively used and how it might interact with the Bill. The underpinning principles of the Bill in themselves support the objectives of advocacy.'' 
That begs a question or two, which I hope the Minister will respond to now. What was the outcome of the process that was clearly outlined in that response? Was it simply the consultee proposals in the Bill, or is there still scope for further movement on this? The Government acknowledge that the principles set out in clause 1 and the best interests principle in clause 4 speak to the issue of advocacy, so will the court eventually end up setting public policy in this area by simply making a common law right to advocacy by interpreting that to have been the intention? The Government response states that that was the policy intention. Are they happy to leave such decisions to be made by the court, or would it not be better for Government to be clearer about things and to provide the enabling powers in the Bill? 
 I hope that one of my concerns can be addressed in this sitting. Confusion is arising about the role of the Bill's independent consultee and what most people who have an interest in public policy in the area of advocacy believe advocacy to be. The explanatory notes state: 
 ''The consultees will act as a form of 'advocate' as they are understood in the social care sector.'' 
I want the Minister to say who in the social care sector recognises an independent consultee to be a form of advocate.

Tim Boswell: Does the hon. Gentleman agree that there is a latent confusion between the role of a specialist second opinion from a professional person and the role of an independent consultee or an advocate? Those three concepts seem to have slid almost seamlessly into one another.

Paul Burstow: I will come on to that shortly, because there is a conflation between advocacy and the independent appointee type of function that the consultee seems to be fulfilling.
 It would be useful if the Minister told us which organisations say that they genuinely see the independent consultee as a form of advocate. I have not looked at the Social Care Institute for Excellence website; it may have surprised me by saying that it shares the Government's view. Has the Social Care Institute for Excellence expressed an opinion? Was it consulted as part of the process? Clearly, many independent agencies—the Disability Rights Commission and others—do not regard the role as a form of advocacy, yet it has been used in an interchangeable—dare I say, almost casual—way in our deliberations on the Bill. 
 I had the misfortune to miss our third sitting, but I have read the transcript of those exchanges. During the Minister's response, the independent consultee was readily transformed into an advocate. It is important not to blur such ideas. The Disability Rights 
 Commission has probably provided all members of the Committee with some definitions of advocacy. It says that 
''advocacy can be defined as an individual being supported to express and communicate choices, and to have these choices respected and acted on.'' 
It gave three broad categories of advocacy, such as self advocacy, 
''where people are supported to make known their own views and choices, to speak up themselves regardless of how they communicate.'' 
Has the Department reflected on a question that I asked at our first sitting, when I referred to support for communication? I asked whether a public authority will be allowed to take into account its resources when it has to decide whether it can provide the communications wherewithal to enable someone to communicate his views, wishes and feelings. That is even before a package of care is put in place, but at the stage when the assessments are being made. How can a person exercise his right to be a party to the assessment process if he is not supported with communications aids and so on? I asked about that earlier, and if there has been further thought on the matter, it would be useful to know whether resources can or cannot be taken into account when providing the communication facilities. 
 The second definition of advocacy was citizen advocacy, in which 
''an independent person, without conflicts of interest with service providers, advocates on behalf of another.'' 
The final form is peer advocacy, in which 
''one person who has the same experiences or has faced the same discrimination as another person, advocates for her/him.'' 
I recognise such definitions, as will other members of the Committee—but more important than that is the fact that they are recognised by those who campaign for and with disabled people, and those who are themselves disabled. Independent consultees do not fit within those models of advocacy, and it is important that we make such a distinction in our debate. 
 Access to independent advocacy is essential if the Bill's full potential is to be realised, but it is the missing element. It is crucial to making a practical reality of the principles in clause 1, which the Government acknowledged in their response to the Joint Committee were a driver towards advocacy. In Scotland, a statutory provision under the Mental Health (Care and Treatment) (Scotland) Act 2003 states that 
 ''Every person with a mental disorder shall have a right of access to independent advocacy ''. 
The Act gives local authorities and national health service bodies the clear duty to ensure that everyone with ''a mental disorder'' has access to independent advocacy services. That so important in making a reality of clause 1(2), which states: 
 ''A person must be assumed to have capacity unless it is established that he lacks capacity.'' 
Clause 1(3) states: 
 ''A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.''
How can that be judged to have happened if advocacy is not part of the package? Clause 5 provides for the protection from liability of carers and professionals in circumstances when no formal powers are required. Although many decisions go beyond everyday matters that are perhaps less serious than those set out under clauses 35 to 37, they are nevertheless important to the individual whose life is affected by those decisions. They go to the heart of a person's health, welfare and well-being. Safeguards are needed, and the views of the vulnerable person without capacity must be sought. 
 Citizens Advice has evidence showing that where care plans are reviewed and cases are closed, a vulnerable person in the community suddenly loses services, although they need them, and does not have the means or support to advocate and get them provided again. Citizens Advice provides another example of a proposed move following the death of a carer—the proposal being that the person is moved from the area in which they have established a life and the only home that they have ever known. In such circumstances, advocacy has a part to play. An independent consultee may have a role, but it is important that someone is there for the person.

Angela Browning: The point that the hon. Gentleman is making very well is that when we talk about advocacy, we are talking not just about somebody who is there to assist P to articulate their views, but someone who will be proactive on behalf of P and will either ensure that the sort of scenario the hon. Gentleman just described does not happen, or do something to rectify it. One of the most worrying questions is who will be proactive on behalf of P, rather than just a facilitator?

Paul Burstow: That is right. There is concern about the role of the independent consultee, because they are there to give advice to decision takers, not to play the role that the hon. Lady has just described. That is the missing part of the equation that the Bill needs to fill.
 It is not just the unbefriended to whom the provision needs to apply. Evidence from Citizens Advice points to disputes in families and occasions on which there is a genuine dispute about what constitutes ''best interests''. As the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) has rightly reminded us, as we move down a more litigious route, people take ever more entrenched positions from which it is much more difficult for them to shift. It is essential that an advocacy service be involved early on to avoid such disputes degenerating into even more costly and damaging legal proceedings. The Law Society provides an example of a dispute in the family or between the family and clinicians over medical treatment and suggests that the rights to advocacy should be included in assessments, including those made under section 47 of the National Health Service and Community Care Act 1990. We will deal with that when we deal with later amendments. 
 We have already discussed the Bournewood gap and the Bournewood judgment, on which some useful exchanges were initiated by the hon. Member for 
 Tiverton and Honiton. The Court identified a number of safeguards that were missing from our legislative framework, including having an advocate and a nominated person—that takes us back to the intervention made by the hon. Member for Daventry. The proposed independent consultee represents an attempt to conflate those two missing safeguards, but we need to have both. Citizens Advice draws a parallel with a guardian ad litem and the service provided in the children's courts. The guardian ad litem does not act for the child, but advises the court. That is what the independent consultee is doing in a number of settings under the Bill. In respect of the guardian ad litem service and the children's courts, the child has an independent representative—someone who is there to ensure that their views, wishes, feelings and needs are central to the discussion in the court—but that representative is separate from the guardian ad litem. 
 There is a need to unpick the issue and be clear about what consultees might do if they remain a feature of the Bill, and how they differ from and are not an answer to the need for independent advocacy. The concerns will persist until that is clarified in the Bill. Many who are campaigning for advocacy to be developed, for an end to the patchiness of provision and for the quality and standards throughout the country to be raised are genuinely concerned that having independent consultees in a statutory framework without advocacy will send a signal to people who commission such services locally that consultees are the priority in terms of commissioning, and resource allocation and resources for independent advocacy will be squeezed as a consequence. Amendment No. 170 and paving amendments Nos. 171 to 175 therefore attempt to introduce advocacy into the Bill. New clause 3 does the same, but without removing the role of the consultee from the Bill. 
 New clause 4,which was suggested to me by the Law Society, is about how we give local authorities a clearer statutory duty to investigate and act on allegations of abuse, so it is rather different and separate from the issue of advocacy, although advocacy may play a part in such investigations. The purpose of the new clause is to place a public duty on local authorities to investigate. It is modelled on provisions in the Children Act 1989. At the moment, there is no equivalent provision in statutory law relating to vulnerable adults. 
 It is right that our debate has focused on advocacy, and I do not want to talk about the new clause at great length, but it is important that we do not lose sight of the importance of elder abuse and the abuse of vulnerable adults. Earlier this year, the Health Committee conducted a short inquiry into elder abuse and came up with some disturbing findings and important recommendations. To this day, there is no accurate figures for the abuse of vulnerable adults and elder abuse in this country. The most up-to-date figure is more than 10 years old, but it suggests that, at any one time, about 500,000 people are the victims of abuse, ranging from assault, psychological pressure 
 and torture, to theft, intimidation, sexual assault and many other forms of abuse, by formal care staff, informal carers, relatives and others. 
 The Government's response to the problem was to issue local authorities and the NHS with guidance called ''No secrets'' in 2000, but having examined the issue, the Select Committee concluded that the implementation of that very good guidance was patchy: some local authorities took it seriously, but others did not prioritise it and had not made much progress as a consequence. The intention behind new clause 4 is therefore to give the guidance in ''No secrets'' statutory impetus, and I hope that the Government can respond positively to that intention. When the Joint Committee, recommended something similar, the Government responded by saying that the issue was being dealt with adequately through the ''No secrets'' guidance, but the evidence seen by the Health Committee during its inquiry does not support that contention. It is disturbing that the guidance has not been adequately implemented in many parts of the country, and the new clause is another way of signalling clearly that we want to see it taken more seriously and to give it statutory teeth. 
 Those, then, are our proposals and the reasons for them, and I hope that the Minister will be able to respond accordingly.

Tom Clarke: It is a pleasure for two reasons to follow the hon. Gentleman. First, I very much welcome the fact that we are now discussing advocacy. There is, to say the least, a degree of frustration among the disability organisations that have been following proceedings: as they see it, we have taken a long time to get to this important issue, and I am glad that we have now got to it. Secondly, in speaking to his amendments, which I support, and new clause 27, the hon. Gentleman mentioned Scotland. I would not claim for one second that we have got it absolutely right in Scotland, but we have made considerable progress, largely because we have accepted our responsibilities for pursuing a policy of care in the community and ensuring that the most vulnerable in our society are protected, particularly by the advocacy that we are supporting this morning.
 Before speaking to new clause 27, let me refer to the time when I met a group of women who had long been patients in one of those old Edwardian hospitals—Lennox castle, near my constituency. After assessment and after advocates had performed their role in the way that we want them to, those women found themselves living in little houses within a supportive community. It was not one of those places, often called institutions, to which people were sent and perhaps never heard of again. They were living in a new environment, in new homes, with a new lifestyle. 
 Many of them in earlier days had worked in the shipyards in Glasgow. I asked those women what they thought was the most interesting contrast between their years living in a big institution and the new lifestyle that they now enjoyed. In a Glasgow accent they said, ''They dinnae gie you jabs.'' I shall interpret that, Mr. Hurst; it means that they did not receive injections. That is important, as people are entitled to 
 know about their medication. I cast no aspersions whatever on the wonderful people who work for the health service, but those women clearly did not have a say in their medication, never mind the lifestyle to which they were forced to become accustomed. It seems that in their case advocacy had made its point. That is why I welcome this discussion. 
 The amendments on independent advocacy may appear to represent wholesale change in the nature and function of the Bill and its purpose, but I hope that after I have sat down having spoken to new clause 26, my hon. Friend the Minister, for whom I have the highest regard, will agree that what is proposed is the least change possible to make the Bill acceptable to groups involved with disability and older people. With that in mind, it might be worth highlighting what stakeholders have been saying about the Bill. Unlike other provisions, there is considerable accord about how the Bill should be changed if it is to be as meaningful as I believe we all wish it to be. 
 The hon. Member for Sutton and Cheam has been extremely helpful by referring to the Making Decisions Alliance, a consortium of the country's biggest charities dealing with disability and older people, including Age Concern England, the Alzheimer's Society, Help the Aged, Mencap, the Mental Health Foundation, Mind, the National Autistic Society, Rethink, Sense and Turning Point. In a briefing note prepared for Second Reading, the alliance said: 
 ''We feel the Mental Capacity Bill has the potential to transform people's lives for the better. However, the Government's good intentions are at risk if more emphasis is not given to the vital role played by independent advocates. Without more independent advocacy services to support and protect more people who may lack capacity, there is a danger that this Bill will not be effective.'' 
If that is true, and the arguments that it is are convincing, that is a great worry to all of us, which we should take on board. 
 Scope, which is also a member of the Making Decisions Alliance, has put the case a little more bluntly, saying: 
 ''Whilst the Mental Capacity Bill in theory supports the autonomy of the individual, the reality of disablism and the lack of a right to advocacy in the Bill means that the Bill will not achieve this goal, and instead it will help to crystallise the inequality that disabled people face.'' 
The Disability Rights Commission, an extremely important and well-informed body, has said that it 
''remains concerned about the absence of rights to independent advocacy in the Bill. We think the Bill must at minimum provide the right to advocacy for all those that require support when making decisions.'' 
That is a heavyweight point of view, which we disregard at our peril. The I Decide coalition, a coalition of disability organisations of disabled people, has said that the Bill will 
''lead to abuses of our human rights'' 
unless there is 
''a right to independent advocacy to all people who are having any decisions made for them by anybody using the powers given by the Mental Capacity Act.'' 
 This Committee must pay great heed to the Joint Committee that scrutinised the draft Bill, on which several members of this Committee served. Reference has rightly been made to its work several times and I am thankful for the extra contribution to our thinking. After hearing all the evidence from every side of the debate, the Joint Committee concluded: 
 ''We are convinced that independent advocacy services play an essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives''. 
The Committee recommended that the Government should 
''meet all reasonable requirements, for the provision of independent advocacy services to incapacitated adults affected by the Bill's provisions.'' 
I am sure that we would all welcome it if the Committee's recommendation were implemented and put into practice with all possible haste. 
 I have quoted from so many sources because, with great respect to my hon. Friend the Minister, I want to stress, as I did in my speech on Second Reading and have done in various interventions in this Committee, that the issue of independent advocacy will simply not go away—nor should it. No disability group, older people's group, stakeholders consortium, disability alliance or commission thinks that the Government have got the measure right yet. I look forward to hearing from my hon. Friend about who supports the Government's proposals, especially those for consultees. 
 For disability groups, who have waited 15 years for the legislation—I might argue that they have been waiting even longer, relating it back to my Disabled Persons (Services, Consultation and Representation) Act 1986—independent advocacy is just as important an issue as end-of-life decisions, and both are extremely important to me. Giving access to an independent advocate to someone who wants one is a way of dramatically improving the quality of their whole life—hopefully throughout their life. All the proposals that I have tabled, from new clause 22 to new clause 27, should be seen as a package of measures to meet more effectively the needs of people who lack capacity, and to realise more effectively the enabling ethos that is, rightly, at the heart of the Bill. 
 I will begin by talking about new clause 27. I recognise that despite what the DRC and disability groups say, in reality we do not have much chance of securing a right to an independent advocate for every disabled person who wants one in every situation in which they want one, even though I stress that I believe that that should be the minimum expectation of the millions of disabled people in Britain whom we are discussing, particularly those with a mental incapacity. That is what the all-party parliamentary group on learning disability believes. I regard it as a great privilege to serve with Lord Rix as the co-chair of that very proactive group. I recognise, however, that politics is the art of the possible. I started by saying that my new clauses on independent advocacy are about making the least change possible to make the Bill palatable to disability and older people's groups. Independent advocates can play a unique and vital role 
 in maintaining the Bill's guiding principles. We see that in the best practice that we all know exists. New clause 27 would reflect that, while also meeting the Joint Committee's key recommendations. 
 The new clause also sets out the role of an independent advocate. I shall dwell on that, because it goes to the heart of why stakeholders—the people who will have to implement the Bill—are so concerned about the Government's proposals as they stand. I say that with enormous respect for my hon. Friend the Minister. I hope that she will be able to provide some clarity today about the role that the Government envisage for their new independent consultee service. In the explanatory notes to the Bill, the Government state: 
 ''The consultees will act as a form of ''advocate'' as they are understood in the social care sector. The clauses supplement the powers and duties conferred elsewhere in the Bill.'' 
In early exchanges with the hon. Member for Tiverton and Honiton the Minister used the terms ''independent advocate'' and ''independent consultee'' as though they were interchangeable. Both those points suggest that by ''independent consultee'' the Government mean what I and disability groups would call an independent advocate. If so, there are some problems, and it is fair that we tackle them openly. 
 First, the term used by the Government is unnecessarily confusing. Secondly, it wrongly suggests that the Government do not support independent advocacy services in meeting the needs of people affected by the Bill. I am sure that that is not the message that they intend. Thirdly, the prioritising of a new category of advocacy—for that is really what is happening—may have an adverse impact on independent advocacy services already provided by local authorities and others. It seems likely that resources would be taken from another budget to meet the new obligation to provide an independent consultee, and that that would be at the expense of independent advocacy support. That would be highly unfortunate, because on one point we are agreed: although we always welcome new resources, the resources that are available are simply inadequate to deal with the challenge. 
 In all candour, I would be even more concerned if the Government were deliberately using the term ''independent consultee'' because they did not want an independent consultee to play the role of independent advocate as it is commonly understood in the social care world. That may not be what the Government are doing, but I had to make that point because it is the view of the organisations involved with disability. We are talking about a major change, and if such a change is to be made, the issue must be addressed openly and knowingly. 
 The Bill says that the function of an independent consultee is to give advice to the body making decisions about the person's best interests; again, that is a matter that the Committee has thought about. There are two points to make about that. The first is that that is not the role of an independent advocate. 
 The role of an independent advocate is to support a person who may have difficulty making decisions in expressing their wishes and feelings, or to help them as far as possible to participate actively in the decision-making process. Given that such decisions have a huge impact on the quality of a person's life, that is the least that they are entitled to ask. We, too, might be expected to give a positive response. 
 A basic principle of advocacy is that the advocate does not make any judgments or express any opinions of their own. They may help to ensure that the person is aware of relevant issues that they may not have considered, or speak on behalf of the person to ensure that the person's views are heard and taken into account, but the independent advocate will not make any decisions or judgments on P's behalf. To do so would defeat the whole purpose of having an independent advocate and that, of course, would be wholly unacceptable. The independent advocate is not there to be the decision maker, making a judgment about P's best interests. That is why I am not at all convinced by the Government's recent amendment, which highlights the claim that the role of the independent consultee should be to represent more clearly P's wishes and feelings. At the end of the day, the independent consultee will still have to make a judgment on P's best interests. 
 The second point, as I commented on Second Reading, is that a number of disability groups suspect that one of the Government's main motivations in introducing the independent consultee service in the draft Bill was to solve the Bournewood issue as easily as possible. The aim was to kill two birds with one stone, but as my hon. Friend the Minister has already made clear, the Government now have to address the implications of the Bournewood ruling properly. 
 What is even clearer is that if the Government persist with the idea of an independent consultee who would make decisions about P's best interests, it is even more vital that an independent advocate should be seen to represent P's views during the decision-making process. New clause 27 sets out not an absolute right to independent advocacy for people lacking capacity, but a duty for the Secretary of State and the National Assembly for Wales to provide independent advocates to the extent that both authorities can ensure that the guiding principles at the start of the Bill are maintained. 
 I thank the Committee for its patience in listening to what I have to say. I genuinely believe that I speak for organisations that have taken a close interest in all such matters throughout our deliberations. I trust that there will be a favourable reply from my hon. Friend the Minister. Although the responsibility on the Committee as it considers the Bill is extremely important, I have to repeat that the matter of independent advocacy will not go away. 
 I offer this thought. I remember sitting in the Committee Room when the 1986 Act was going through. Lord Ashley, a dear friend of many of us in this Room, said that he thought that making progress on these matters, including progress on advocacy, 
 meant that we had to use the salami method—in other words, to get what we wanted slice by slice. However, I think that even Lord Ashley would agree that after all this time the salami is turning a little sour. Today the Government have the opportunity to redeem themselves, and I invite my hon. Friend the Minister to take it.

Angela Browning: I totally support the representations made by previous speakers on the clauses. I am reminded of what the Association of Directors of Social Services told the Joint Committee, of which I was a member, about advocacy. It is on page 87 of the Joint Committee's report. The association said that
''the best interests of a person without capacity would be promoted by easy access to independent information, advice and advocacy. However, they emphasised that Local Authorities did not have the duty or the resources to secure the provision of support and advocacy.'' 
Under the Bill, independent consultees would be appointed and the appropriate authorities would have to make such arrangements, particularly in respect of the provisions under clauses 35, 36 and 37. We are talking about some of the biggest decisions of people's lives, particularly those to do with serious medical treatment, and with an NHS body or a local authority seeking to provide accommodation. 
 While the right hon. Member for Coatbridge and Chryston was speaking, I was thinking about the number of case conferences that I have personally attended in which I have had to fight hard to get somebody with the necessary expertise to attend, so that the conference could be meaningful, particularly when it involved making the right decision about somebody's accommodation. I cannot see how there could not be a conflict of interest if a local authority, a social services department or an NHS health provider has to seek out an independent consultee. Presumably, in many cases that would have to be done in short order; such decisions often need to be made, perhaps not in a couple of weeks, but not in a couple of years. Sometimes there is a crisis, such as the example that I cited earlier, when an adult with a learning disability or autistic spectrum disorder lives with an elderly parent who then dies or is incapacitated. Suddenly, somebody has to make a life-changing decision for that person. 
 I want to add this dimension to the issue. Whatever relationship a carer may have to P—the person who is incapacitated or partially incapacitated—carers too need advocates. They may be acting in the best interests of P—of somebody whom they love very much—but we all know from our casework that carers are often not the best advocates. Sometimes that is particularly so if they are very close to P. It is not that they do not mean to be good advocates, but they may be so emotionally bound up with the case that they need someone with expertise and clarity to be there for them, as well as for P. As a little team, they need that expertise to be brought in. 
 About two years ago, I conducted some independent research throughout the country on the availability of independent advocacy services for 
 adults with autistic spectrum disorders. It was extremely patchy. We as Members of Parliament draw on advocacy services to help us with our casework, and I am troubled; the independent advocacy that exists is patchy, sporadically available, and very much based in the charitable sector, where many organisations are unable to plan their budgets in the medium to long term because of the way in which their funding flows through. 
 If we are to rely on the independent charitable sector to provide advocacy across the piece—for young people with learning disabilities, for adults with long ongoing mental health problems, and for elderly people who need residential or nursing care, or who have a crisis of the sort addressed in the clauses that we are now coming to—I fear that they will not be able to provide the service that is needed. They cannot cope at present, so how will they cope in the future? It is clear from the legislation that there will be an increased need for more services to be provided across a range of disciplines. That increase is right, but I am concerned that the independent consultee is not going to fit the bill. 
 I will not repeat the excellent representations made by the two previous speakers, because they have summed up the length and breadth of this issue and what is needed. I cannot see how the necessary resources will be put in place. It would be naive to think that the day this comes into law, the charitable sector will be able to ratchet things up and provide this huge resource out of their existing funds. I would like the charitable sector to be the provider of independent advocacy because its organisations are genuinely independent and have knowledge of the discipline that they are interested in, so I am not saying that is the wrong way to proceed. However, I cannot see how they will be able to rise to that challenge, because there is a lack of recognition in the Bill of the resources that are needed to provide independent advocacy. 
 Clause 34 states: 
 ''The appropriate authority must make such arrangements''. 
When I read that, I worry that the appropriate authority will be a statutory body that has a vested interest in the outcome of the case. Where will they get the services from if they cannot buy them in from the independent and charitable sector? They might provide them in-house at arm's length, which would be unsatisfactory because, apart from anything else, the directors of social services have told us that they do not have the resources to do that, and I have not come across any provision in the Bill that allocates additional resources for it to be done.

Tim Boswell: I am sure that my hon. Friend has also noticed that the provisions in the Bill simply relate to the giving of advice to local authorities. The advocates have no executive role, nor should they; however, it is open to local authorities to take not a blind bit of notice when the advice is tendered, and that may well happen.

Angela Browning: That is right, and I say from the experience of having dealt with casework involving adults with mental health problems and autistic
 spectrum disorders that when push comes to shove, if the local authority cannot provide the right outcome, particularly in terms of the care package or appropriate housing or rehousing, ultimately things have to go to court to be challenged and decided. Regrettably, that is happening more often.
 One looks to those law practices that have a record in successfully taking on social service departments. They often sort matters out before they go to court. 
 However, that is not how things should be. If the independent advocate or consultee is not the sort of person who at the end of the day will advise— 
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.